IN THE MARYLAND COURT OF APPEALS
C. JAMES OLSON
11761A Angleberger Road
Thurmont, Maryland 21788
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C. PAUL SMITH
103 Fairview Avenue
Frederick, Maryland 21701
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RONALD GEORGE
364 Oak Drive
Arnold, Maryland 21012
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CARL F. MIDDLEDORF
18307 Bluebell Lane
Olney, Maryland 20832
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ANTONIO WADE CAMPBELL
1000 East Joppa Road, Apt. 509
Towson, Maryland 21286
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PHILIP J. SMITH
286 Tidewater Circle
Preston, Maryland 21655
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Plaintiffs
vs.
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Case No. ______________
MARTIN O’MALLEY, Governor
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Of the State of Maryland
State House, 100 State Circle
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Annapolis, Maryland 21401
SERVE: Attorney General Douglas F. Gansler
Office of the Attorney General
200 St. Paul Place
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Baltimore, Maryland 21202
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Defendant
COMPLAINT FOR DECLARATORY JUDGMENT AND OTHER RELIEF
WITH RESPECT TO THE REDISTRICTING
OF THE MARYLAND CONGRESSIONAL DISTRICTS
This is an action for a declaratory judgment, a writ of mandamus and other relief under the
Courts and Judicial Proceedings Article of the Maryland Code. Section 3-401 et seq. (declaratory
judgments), Section 3-8B-01 (writs of mandamus), and other injunctive relief. The relief sought is
to secure for plaintiffs their rights under the Maryland State Constitution and the United States
Constitution to be represented in Congress as a part of election districts that are rationally
geographically defined in compliance with the State and federal Constitutions, which include the
right to be represented in Congress by representatives elected in districts that are compact,
contiguous and defined with due regard to natural and political subdivision boundaries. The new
districts established in the “Congressional Districting Plan” passed by the State Legislature on
October 20, 2011 and signed into law by the Governor on October 20, 2011, violate the
requirements of Maryland election laws, the Maryland Constitution and the United States
Constitution. Relief is requested to correct the redistricting.
JURISDICTION
1. The Court of Appeals has original jurisdiction to review the legislative districting of
the State, including congressional districting. Maryland Constitution, Article III, Section 5. 1
THE PARTIES
2. Plaintiff C. James Olson is a registered voter in Frederick County, Maryland, and he
resides at 11761A Angleberger Road, Thurmont, Maryland 21788. He resides in new District 8 in
the “Congressional Districting Plan.”
3. Plaintiff C. Paul Smith is a registered voter in Frederick County, Maryland, and he
resides at 103 Fairview Avenue, Frederick, Maryland 21701. He resides in new District 6 in the
“Congressional Districting Plan.”
1
Contemporaneously herewith a virtually identical suit is being filed in the Circuit Court for Anne Arundel
County, Maryland. If the Court of Appeals accepts jurisdiction of this case, it is the intent of plaintiffs to dismiss the
Anne Arundel County case.
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4. Plaintiff Ronald George is a registered voter in Anne Arundel County, Maryland, and
he resides at 364 Oak Drive, Arnold, Maryland 21012. He resides in new District 4 in the
“Congressional Districting Plan.”
5. Plaintiff Carl F. Middledorf is a registered voter in Montgomery County, Maryland, and
he resides at 18307 Bluebell Lane, Olney, Maryland 20832. He resides in new District 3 in the
“Congressional Districting Plan.”
6. Plaintiff Antonio Wade Campbell is a registered voter in Baltimore County, Maryland,
and he resides at 1000 East Joppa Road, Apt. 509, Towson, Maryland 21286. He resides in new
District 2 in the “Congressional Districting Plan.”
7. Plaintiff Philip J. Smith is a registered voter in Caroline County, Maryland, and he
resides at 286 Tidewater Circle, Preston, Maryland 21655. He resides in new District 1 in the
“Congressional Districting Plan.”
FACTUAL ALLEGATIONS
8. Following the decennial census made by the United States Census Bureau in 2010,
which data was reported to the State of Maryland on February 9, 2011, the number of
Congressional districts in the State remained at eight, but the new population figures showed an
increase in Maryland residents and a shift in demographics around the state.
9.
The Maryland Code requires the Maryland General Assembly and the Governor to
review and/or redraw congressional district boundaries after each decennial census, subject to the
State Constitution and laws. Section 8-701(2011) of the Elections Article of the Maryland Code.
10. Maryland law imposes no deadline for when new congressional boundaries must be
drawn.
11. Candidates for congressional primary elections in Maryland must file for such
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candidacy by January 11, 2012. Section 5-303(a) of the Election Article of the Maryland Code.
12. The Maryland Constitution requires that congressional districts be defined and
designated, for which from each a Congressional Representative will be elected to serve in the
United States House of Representatives for two-year terms.
13. The term “district” implies that that area defined and designated will be an area that is
cognizable geographically such that it is susceptible to be represented by an elected representative.
14. The Maryland Constitution requires that all state districts, for which representatives
are elected to the Maryland Senate and House of Delegates, must be contiguous, “compact in
form” and that “due regard be given to natural boundaries and the boundaries of political
subdivisions.” Article III, Section 4 of the Maryland Constitution.
15. Article III, Section 4 of the Maryland Constitution establishes a State policy for setting
the boundaries of all state and congressional election districts in the State of Maryland.
16. That Article IV, Section 4 of the United States Constitution and the Due Process and
Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution require
the State of Maryland to establish congressional districts which are compact and contiguous and
which give due regard to political subdivision boundaries. In the Matter of Legislative Districting
of the State, 370 Md. 312, 805 A.2d 292, 296, 318 (2002); and Reynolds v. Sims, 377 U.S. 533,
577; 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964).
17. Exhibit 1 is a map of Maryland (dated May 6, 2002) showing the boundaries of the
State’s eight congressional districts prior to October 20, 2011.
18. On October 20, 2011, the Maryland Senate and the Maryland House of Delegates
passed SB 1, entitled “Congressional Districting Plan,” which proposed a redistricting plan for the
eight congressional districts in the State. (See Exhibit 2, attached.) Later on October 20, 2011,
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the Governor signed the bill into law. The last page of this exhibit is a map showing the
boundaries of all eight congressional districts that are a part of this Plan.
19. Exhibit 3 is a redistricting map proposed by the Republican Party dated July 21, 2011,
which demonstrates a redistricting plan for Maryland that would yield compact districts that give
due regard for county boundaries and at the same time comply with federal equal population
requirements.
20. Exhibit 4 is a set of twelve maps that show the boundaries of the current State Senate
and State Delegate district boundaries in Maryland.
21. Exhibit 5 is comprised of eight enlarged maps of each of the eight, new congressional
districts in Maryland as defined in the “Congressional Districting Plan.”
22. The new congressional district boundaries set forth in this law for District 1 in the new
“Congressional Districting Plan” are not sufficiently “compact” and do not give “due regard [to]
the boundaries of political subdivisions.” This district encompasses all of the eastern shore, and
extends west through the northern parts of Harford, Baltimore and Carroll Counties. Specifically,
this district should not have been drawn to extend into Carroll County, but it should have been
confined within Harford County, and only a portion of this district should have been extended into
Baltimore County, if necessary to comply with federal requirements for equal population districts.
23. The new congressional district boundaries set forth in this law for District 2 in the new
“Congressional Districting Plan” is not sufficiently compact, but rather is strewn out over
Baltimore City and four counties (Anne Arundel, Baltimore, Harford and Howard), connecting
neighborhoods in each of these five jurisdictions by narrow strips of land. The new boundaries for
this district totally disregard the county subdivisions. This district should have been drawn to be
compact and to take in as few counties as possible.
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24. The new congressional district boundaries set forth in this law for District 3 in the new
“Congressional Districting Plan” is not sufficiently compact, but rather is strewn out over
Baltimore City and four counties (Anne Arundel, Baltimore, Howard and Montgomery),
connecting neighborhoods in each of these five jurisdictions by narrow strips of land. The new
boundaries for this district totally disregard the county subdivisions. This district should have
been drawn to be compact and to take in as few counties as possible.
25. The new congressional district boundaries set forth in this law for District 4 in the new
“Congressional Districting Plan” is not sufficiently compact, but rather is comprised of one major
area in Prince George’s County and another major area in Anne Arundel County—which areas are
not adjacent to one another, and the two areas are connected by a narrow strip of land. The district
should have been drawn to be compact and confined as much as possible to one county, instead of
causing excessive and unnecessary divisions to be made in both Anne Arundel and Prince
George’s Counties.
26. The new congressional district boundaries set forth in this law for District 6 in the new
“Congressional Districting Plan” are not sufficiently compact and do not give due regard to the
boundaries of political subdivisions. This district encompasses all of western Maryland, and
extends east to part of Frederick County, and terminates in Montgomery County. Specifically, this
district should have kept the entirety of Frederick County within the district, and should have only
extended into Montgomery County as may have been necessary to comply with the federal
requirements for equal population districts, but even then it should have only taken in such areas
of Montgomery County that were adjacent to Frederick County and which would have resulted in
a compact district.
27. The new congressional district boundaries set forth in this law for District 8 in the
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new “Congressional Districting Plan” is not sufficiently compact, but rather is comprised of a
large rural area in Carroll County and northern Frederick County, and this is connected with a
populous suburban area in southern Montgomery County. These areas are not adjacent to one
another, and the two areas are connected by a long, narrow strip of land. The district should have
been drawn to be compact and confined as much as possible to one county, instead of causing
excessive and unnecessary divisions to be made in all three of these Counties.
WHEREFORE, Plaintiffs respectfully request that this Honorable Court:
A. Enter a declaratory judgment that the congressional district boundaries set forth in
SB 1, “Congressional Districting Plan,” violate the Maryland Constitution and Election
laws and the United States Constitution;
B. Enter an injunction to prevent the State of Maryland from using the “Congressional
Districting Plan” in any primary or general election;
C. Reinstate the immediately previous congressional districting plan until such time as a
new and constitutionally valid districting plan is enacted;
D. Pursuant to Section 3-409(e) of the Courts & Judicial Proceedings Article of the
Maryland Code, order a speedy hearing in connection with this complaint, including
advancing the scheduling of such a hearing; and
E. Grant such other and further relief as may be just and proper.
_______________________________________
C. Paul Smith
Attorney for Plaintiffs
308 West Patrick Street
Frederick, Maryland 21701
(301) 762-0033
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IN THE MARYLAND COURT OF APPEALS
C. JAMES OLSON, et al.,
Plaintiffs
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vs.
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MARTIN O’MALLEY,
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Case No. _________
Defendant
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PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
Come now the Plaintiffs, C. James Olson, C. Paul Smith, Ronald George, Carl F.
Middledorf, Antonio Wade Campbell and Philip J. Smith , by and through their attorney, C. Paul
Smith, pursuant to Maryland Rule 2-501, and move this Honorable Court to grant a Summary
Judgment in their favor with respect to their Complaint for Declaratory Judgment and Injunctive
Relief, and in support thereof state the following:
1. There is no dispute as to any material fact in connection with Plaintiffs’ complaint for a
declaratory judgment and for injunctive relief.
2. All of the material factual allegations in Plaintiffs’ complaint pertaining to the new
boundaries of the eight congressional districts in the State of Maryland are the official position of
the State of Maryland. There is no dispute as to the configuration and boundaries of any one of
the eight new congressional districts. There is no question about the Legislature’s or the
Governor’s intent. This law suit is a simple matter of applying the U. S. Constitution and the
Maryland State Constitution and Maryland law to the newly promulgated congressional election
districts in Maryland.
3. As a matter of law, the newly promulgated congressional election districts in Maryland
(signed into law on October 20, 2011) violate (a) the mandates and requirements of Article IV,
Section 4 of the U. S. Constitution which guarantees a Republican form of government to every
state; and (b) the mandates and requirements of the Due Process and Equal Protection Clauses of
the Fourteenth Amendment of the U.S. Constitution, which also guarantee a fair representative
government to the citizens of every state; and (c) the policy of the State of Maryland that all of its
election districts be “compact,” “contiguous” and be drawn with “due regard to natural and
political subdivision boundaries.”
WHEREFORE, Plaintiffs’ request that this Honorable Court grant the following relief:
A. Grant summary judgment in their favor with respect to their Complaint;
B. Enter a declaratory judgment that the congressional district boundaries set forth in
SB 1, “Congressional Districting Plan,” violate the Maryland Constitution and Election
laws and the United States Constitution;
C. Enter an injunction to prevent the State of Maryland from using the “Congressional
Districting Plan” in any primary or general election;
D. Reinstate the immediately previous congressional districting plan until such time as a
new and constitutionally valid districting plan is enacted; and
E. Grant such other and further relief as may be just and proper.
_______________________________________
C. Paul Smith
Attorney for Plaintiffs
308 West Patrick Street
Frederick, Maryland 21701
(301) 762-0033
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IN THE MARYLAND COURT OF APPEALS
C. JAMES OLSON, et al.,
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Plaintiffs
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vs.
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MARTIN O’MALLEY,
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Case No. _________
Defendant
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AFFIDAVIT OF C. PAUL SMITH
This affidavit is being filed in support of Plaintiffs’ Motion for Summary Judgment.
I, the undersigned, C. Paul Smith, am one of the plaintiffs in the above case, and I am
counsel for all six plaintiffs. I am over the age of eighteen years, and I am competent to make this
affidavit.
The matters and facts set forth in the seven-page “Complaint for Declaratory Judgment and
Other Relief with Respect to the Redistricting of the Maryland Congressional Districts” are all
true and correct to the best of my knowledge, information and belief. The text of SB 1 was
obtained from the office of Legislative Services. The maps that are attached to that Complaint in
Exhibits 1, 2, 3, 4 and 5 (including the 8 maps in Exhibit 5) were obtained by me from official
Maryland State offices via the internet or otherwise.
I do solemnly declare and affirm under the penalties of perjury that the contents of the
foregoing affidavit are true and correct to the best of my knowledge, information and belief.
___________________________________
C. Paul Smith
date
IN THE MARYLAND COURT OF APPEALS
C. JAMES OLSON, et al.,
Plaintiffs
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vs.
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MARTIN O’MALLEY,
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Case No. _________
Defendant
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MEMORANDUM IN SUPPORT OF
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
Plaintiffs file this Memorandum in support of their Motion for Summary Judgment.
For the reasons stated herein, Plaintiffs are entitled to summary judgment as a matter of
law in their favor with respect to all relief requested in their Complaint.
I. JURISDICTION OF THE COURT OF APPEALS
This Court has original jurisdiction to hear this case pursuant to Article IV, Section 5 of the
State Constitution, which states in pertinent part:
Upon petition of any registered voter, the Court of Appeals shall have original
jurisdiction to review the legislative districting of the State and may grant appropriate
relief, if it finds that the districting of the State is not consistent with requirements of
either the Constitution of the United States of America, or the Constitution of Maryland.
This statement is a part of a section that seems to pertain primarily to election boundaries for state
delegates and senators. The conferral of original jurisdiction upon this Court is unmistakable.
But does this conferral of original jurisdiction apply to congressional districts as well? The
wording does not exclude its application to questions about congressional districts. The same
need for a prompt resolution of questions about state district boundaries applies equally to the
need for a prompt resolution of the state’s congressional boundaries. The fact that there is no
other provision about such a prompt remedy in either the State Constitution nor in its election laws
raises the question as to whether the omission was purposeful or by neglect or whether the
wording in Section was 5 was indeed intended to apply to congressional districts, too.
If this Court were to dismiss the current Complaint for lack of jurisdiction, by holding that
Section 5 does not confer jurisdiction on this Court to hear this issue, then plaintiffs intend to
pursue the same relief through another suit that is being filed contemporaneously in the Circuit
Court for Anne Arundel County, after which that case may eventually make its way to the Court
of Appeals. Principles of judicial economy, fundamental voting rights, and the State principles of
fair and proper elections—all combine to support the premise that this Court should take
jurisdiction over this case as soon as possible.
II. ENTITLEMENT TO SUMMARY JUDGMENT
The prerequisites to a party’s entitlement to summary judgment are set forth in Rule 2501(a), which states:
Any party may make a motion for summary judgment on all or part of an action on
the ground that there is no genuine dispute as to any material fact and that the party is
entitled to judgment as a matter of law. The motion shall be supported by affidavit if
it is (1) filed before the day on which the adverse party’s initial pleading or motion is
filed or (2) based on facts not contained in the record.
Regarding this rule, the Court of Appeals stated the following in Sadler v. Dimensions,
378 Md. 509, 836 A.2d 655, at 671 (2003):
In considering a motion for summary judgment, the trial court does not determine
any disputed facts, but instead rules on the motion as a matter of law. The court
views the facts, including all inferences, in the light most favorable to the party
against whom the court grants the judgment.
The application of this standard to the undisputed facts of this case, as will be shown below,
warrants the granting of summary judgment in favor of Plaintiffs.
III.
UNDISPUTED FACTS
New, Congressional District 1. Newly formed District 1 comprises all of Maryland’s
eastern shore, takes in all of Cecil County, and then extends west over the northern part of the state
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to pick up most of Harford County, a small section of north Baltimore County (the rural land next
to the Pennsylvania border, and then taking in approximately one-half of Carroll County—the
northern and eastern rural portions, but excluding the area around Westminster. The previous
District 1 did not extend into either Baltimore or Carroll Counties. A due regard for county
boundaries could easily have been done so as to keep most, if not all, of Carroll County within the
same district. The area in Harford County south and east of I-95 could have been included in
District 1. This would have put all of Harford County in District 1, and it would have obviated the
need to extend the district west into Carroll County. The newly drawn District 1 violates the State
policy for compactness with respect to both Carroll County and Harford County.
New, Congressional District 2. This new district is one of the new districts that patently
violates the principle of compactness. The largest land mass in the district includes most of the
land south and east of I-95 and bordering on the western shore of the Chesapeake Bay. Going
southwest from Havre de Grace, it takes in portions of both Harford and Baltimore County. Then,
when it reaches the mouth of the Patapsco River at southeast Baltimore, the new district jumps
over the river and continues in the southwest direction, taking in a southern portion of Baltimore
City, a small part of northern Anne Arundel County, a small section of southern Baltimore
County, and continuing southwest it reaches into Howard County, where it expands to pick up
most of the area around Columbia. The district also includes a string of land extending west from
White Marsh (in Baltimore County), extending west in a zig-zag fashion to include parts of
Owings Mills and Randallstown. However, this western, zig-zag string of land is the antithesis of
compactness, and it divides Baltimore County by adding a narrow, zig-zag strip of a new district
between newly created Districts 3 and 7. District 2 violates the principle of compactness, does
not give due regard to either political subdivision boundaries or natural boundaries (i.e., the
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Patapsco River), and the southwestern portions are not contiguous with the rest of the District.
Furthermore, while the northwestern portion is technically contiguous, it was strung together by
some narrow strips of land, such that for all intents and purposes, that area is not contiguous with
the rest of the district.
New, Congressional District 3. New District 3 is the most convoluted of all new districts
in the “Congressional Districting Plan.” Its shape looks like the configuration one would see if a
bowl of spaghetti sauce were dropped from a table, such that when the bowl hit the floor the sauce
bounced out of the bowl and landed indiscriminately outside of the bowl.
The district extends
from Owings Mills and Towson on the north; then it picks up the Inner Harbor area of Baltimore
City; it includes most of the western shore of the Chesapeake Bay in Anne Arundel County,
extending down to Annapolis; it goes around a large area in new District 2 bounded on the east by
the Marc train tracks, bounded mostly on the south by State Route 32 and bounded on the
northwest by I-95 (the surrounded area is partly in Anne Arundel County and partly in Howard
County); then the district extends west, south of Columbia and into Montgomery County
extending along the Montgomery-Howard County line all the way west to State Route 94; it
includes Brookeville, Olney and White Oak in Montgomery County, extending all the way down
to I-495 at the New Hampshire Avenue interchange. The district is the total opposite of compact.
It is barely, technically contiguous: A narrow strip of land connects the Towson portion to an area
in Fullerton, which is in turn connected by another narrow strip of land to the “Eastern” section of
Baltimore City, which is connected to the areas of Montgomery County by a narrow strip of land
that runs southwest approximately following I-95; then another narrow strip of land extends east
from Montgomery County (just south of Route 32) and then turns north around Telegraph Road
(Route 170), and then taking in much of the northern part of Anne Arundel County, but not the
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northernmost part; from there the district continues east to the western shore of the Chesapeake
Bay and extends south, down the shoreline to Gibson Island; then it jumps the Magothy River and
takes in the shoreline areas of that peninsula, and then jumps the Severn River and picks up
Annapolis. Admittedly, this is a complicated description; one really must look at a map to see it.
Once again the configuration of this district is the antithesis of a compact district. It is barely,
technically contiguous. And it gives no regard to the boundaries of political subdivisions: It
takes in parts of Baltimore County, Baltimore City, Anne Arundel County, Howard County and
Montgomery County.
New, Congressional District 4.
Congressional District 4 is comprised of parts of Anne
Arundel and Prince George’s Counties: It includes a large area in the middle of Anne Arundel
County north and west from Annapolis, and it includes a large and populated area in Prince
George’s County immediately adjacent to Washington, D. C.; it includes Forest Heights,
Morningside, District Heights, Capital Heights, Cheverly, Bladensburg, Hyattsville, University
Park, Landover Hills and New Carrollton. But there is a broad stretch of land in new District 5
separating the main land areas in Prince George’s County from those in Anne Arundel County;
that large land area starts west of Route 301 near Upper Marlboro on the south, and then extends
north along Route 301 to Bowie, and then extends west through Greenbelt and Berwyn Heights,
but then stops just prior to the Montgomery-Prince George’s County line. There is a narrow area
of land in Prince George’s County along its western border that connects the two larger areas of
land in this district. District 4 is not compact. It is barely contiguous. It disregards the county
boundary—splitting both counties into multiple voting districts.
New, Congressional District 6. Frederick County Maryland was formerly entirely within
Congressional District 6. Newly formed District 6 divides into two parts both Frederick County
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and Montgomery County. The newly drawn District 6 is strewn out along the western boundary
of Frederick County and the western boundary of Montgomery County all the way down to the
Capital Beltway (I-495). The obvious purpose of this newly drawn district is to add more
Democrat votes to the district, but in doing so the district configuration sacrifices compactness to
accomplish the political goal. Regardless of the motivation, the newly configured District 6 is not
compact. In addition, the political subdivision boundaries for both Frederick County and
Montgomery County were disregarded in creating the new configuration for Districts 6 and 8. A
due regard for these important County boundaries would have been to keep all of Frederick
County in one Congressional District and to construct Congressional District 8 from entirely
within Montgomery County. The newly drawn Districts 6 and 8 failed to do this.
New, Congressional District 8. Former District 8 was comprised solely of an area within
the boundaries of Montgomery County, Maryland, such that it was compact in form and it was
totally within the boundaries of a major political subdivision (i.e., Montgomery County).
Conversely, new District 8 stretches north out of Montgomery County and takes in approximately
three quarters of Frederick County, extending all the way up to Emmitsburg and the Pennsylvania
border. The remaining portion in Montgomery County takes in a narrow part of northern
Montgomery County, with a very narrow isthmus that goes by Brookeville and down to
Glenmont; then the district expands so that it includes all of southern Montgomery County, from
the border with Prince George’s County and all of the county border with the District of
Columbia, all the way to the Potomac River. Newly designed District 8 is barely contiguous, as it
connects the heavily populated areas of Rockville, Silver Spring, Chevy Chase, Bethesda,
Kensington and Takoma Park with the rural areas of Frederick County. Thus, new District 8 is
expanded to take in two counties, where previously it had only encompassed one county. The
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newly drawn boundary is expanded, such that most of its land mass is now in Frederick County,
and the remaining portion in Montgomery County is not compact, but is strewn out on the
northeastern side of Montgomery County, extending south all the way to Chevy Chase and the
boundary with the District of Columbia. The section of new District 8 in Montgomery County
looks like a large piece of a jigsaw puzzle, with a very narrow strip connecting Frederick County
to the southern, urban areas of Montgomery County. The new configuration is anything but
geographically compact. The portion of new District 8 is barely contiguous in Montgomery
County. At one point there is only a narrow strip of land that connects to areas around Chevy
Chase and Silver Spring with Frederick County. Thus, this barely satisfies the “contiguous”
requirement, but this strung-out district is not compact. In addition, this newly drawn boundary
disregards the major county subdivision boundaries that should have retained District 8 entirely
within Montgomery County. Not only did the new boundary disregard county boundaries, but the
plan also disregarded the boundaries for state Senators and Delegates. Senate District 4, which
encompasses parts of Frederick and Carroll Counties is divided by the new District 8. Under the
new plan two-thirds of this Senate district would now be in Congressional District 8, and one-third
would be in new congressional District 1.
IV. LAW
Plaintiffs contend that the State’s new “Congressional Districting Plan” violates both the
United States Constitution (which will be discussed in Section A) and the Maryland Constitution
and Election Laws (which will be discussed in Section B).
A. DISTRICTING REQUIREMENTS UNDER THE UNITED STATES CONSTITUTION
Article I, Section 2 of the Constitution provided that the number of Representatives in the
House of Representatives “shall be apportioned among the several States . . . according to their
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respective numbers,” but counting only three-fifths of the number of slaves. Section 2 goes on to
require an “actual enumeration” (a census) to be taken every ten years. The “three-fifths”
provision was corrected in the Fourteenth Amendment, Section 2. The Constitution does not
specifically provide how a state must or may select its Representatives, except that Article IV,
Section 4 states that “[t]he United States shall guarantee to every State in this Union a Republican
Form of Government” (see e.g., New York v. United States, 505 U.S. 144, 184 (1992)); and
Section 1 of the Fourteenth Amendment extends to every citizen both Due Process rights and
Equal Protection under the laws, which have been interpreted to guarantee certain voting rights
with respect to the designation of congressional districts. Reynolds v. Sims, 377 U.S. 533 (1964);
and Baker v. Carr, 369 U.S. 186, 218-229 (1962). Initially, at least one state selected all of its
Representatives in an at-large election. The Tenth Amendment specifically provides that “The
powers not delegated to the United States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people.”
These are the fundamental, controlling provisions of the United States Constitution with
respect to the selection by the States of Representatives to Congress. Writing for the Supreme
Court in 1997, Justice Souter stated:
A State should be given the opportunity to make its own redistricting decisions so long as
that is practically possible and the State chooses to take the opportunity. [] When it does
take the opportunity, the discretion of the federal court is limited except to the extent that
the plan itself runs afoul of federal law.
Lawyer v. Department of Justice, 521 U.S. 567, 576-7 (1997). See also, Voinovich v. Quilter, 507
U.S. 146, 157: “[T]he federal courts are bound to respect the States’ apportionment choices unless
those choices contravene federal requirements.”) The question then, is: What federal laws or
requirements govern a state’s redistricting work?
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Some of the federal requirements are based upon the Due Process and Equal Protection
Clauses of the Fourteenth Amendment.
Although states are not required to select Representatives by the use of election districts,
when a state legislature vests the right to vote for Representatives in its people, then it puts in
place fundamental voting rights which are subject to the United States Constitution. This principle
was articulated by the Per Curiam Opinion of the Supreme Court in Bush v. Gore, 531 U.S. 104105 (2000) in the analogous situation of voting for electors for the President of the United States:
The individual citizen has no federal constitutional right to vote for electors for the
President of the United Sates unless and until the state legislature chooses a statewide
election as the means to implement its power to appoint members of the Electoral College.
U. S. Const., Art. II, Section 1. This is the source for the statement in McPherson v.
Blacker, 146 U.S. 1, 35 (1892), that the Sate legislature’s power to select the manner for
appointing electors is plenary; it may, if it so chooses, select the electors itself, which
indeed was the manner used by State legislatures in several States for many years after the
Framing of our Constitution. Id., at 28-33. History has now favored the voter, and in each
of the several States the citizens themselves vote for Presidential electors. When the state
legislature vests the right to vote for President in its people, the right to vote as the
legislature has prescribed is fundamental; and one source of its fundamental nature lies in
the equal weight accorded to each vote and the equal dignity owed to each voter. The
State, of course, after granting the franchise in the special context of Article II, can take
back the power to appoint electors. See id., at 35 (“’[T]here is no doubt of the right of the
legislature to resume the power at any time, for it can neither be taken away nor
abdicated”) (quoting S. Rep. no. 395, 43d Cong., 1st Sess.).
The right to vote is protected in more than the initial allocation of the franchise. Equal
protection applies as well to the manner of its exercise. Having once granted the right to
vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one
person’s vote over that of another. See, e.g., Harper v. Virginia Bd. of Elections, 383 U.S.
663, 665 (1966) (“[O]nce the franchise is granted to the electorate, lines may not be drawn
which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment”).
It must be remembered that the right of suffrage can be denied by a debasement or dilution
of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free
exercise of the franchise.” Reynolds v. Sims, 377 U.S. 533, 555 (1964).
531 U.S. 104-105. Voting rights in electing Representatives to Congress are “fundamental rights.”
The full extent and parameters of such rights are not specifically articulated in the text of the
Constitution and its amendments, but the principles attending these rights have been identified by
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the Supreme Court in various voting rights cases. One of the most obvious parts of this
fundamental right is the “one person, one vote” right (or the “equal population principle”), which
is required by the Equal Protection Clause of the Fourteenth Amendment and which requires that
election districts within a state be “as nearly of equal population as is practicable.” Reynolds v.
Sims, 377 U.S. 533, 577 (1964).
This federal right to vote guarantees an equal right to vote to all
who participate—the fundamental voting right is broader than merely a prohibition against racial
discrimination. The Supreme Court stated in Gray v. Sanders, 372 U.S. 368 (1963):
Once the geographical unit for which a representative is to be chosen is designated, all
who participate in the election are to have an equal vote—whatever their race, whatever
their sex, whatever their occupation, whatever their income, and wherever their home
may be in that geographical unit. This is required by the Equal Protection Clause of the
Fourteenth Amendment.
372 U.S. 368, at 379.
The Supreme Court stated that a state may deviate to some extent from creating districts
that are perfectly equal in population in order to create districts that are compact and contiguous
and to “maintain the integrity of various political subdivisions.” Reynolds v. Sims, 377 U.S. 533, at
579.
The implicit meaning of these statements by the Court is that it is important for a state to
provide compact districts of contiguous territory, giving due regard to political subdivisions. The
necessity of states to recognize and honor these principles are a part of the voters “fundamental”
voting rights. The Supreme Court went on to explain the importance of these considerations as
follows:
A State may legitimately desire to maintain the integrity of various political
subdivisions, insofar as possible, and provide for compact districts of contiguous territory
in designing a legislative apportionment scheme. Valid considerations may underlie such
aims. Indiscriminate districting, without any regard for political subdivisions or natural or
historical boundary lines, may be little more than an open invitation to partisan
gerrymandering.
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Id., 377 U.S. at 579. The Court stated more about the importance of recognizing political
subdivision boundaries:
A consideration that appears to be of more substance in justifying some deviation from
population-based representation in state legislatures is that of insuring some voice to
political subdivisions, as political subdivisions. Several factors make more than
insubstantial claims that a State can rationally consider according political subdivisions
some independent representation in at least one body of the state legislature, as long as the
basic standard of equality of population among districts in maintained. Local
governmental entities are frequently charged with various responsibilities incident to the
operation of state government. In many States much of the legislature’s activity involves
the enactment of so-called local legislation, directed only to the concerns of particular
political subdivisions. And a State may legitimately desire to construct districts asking
political subdivision lines to deter the possibilities of gerrymandering.
Id., 377 U.S. at 580-81. The principles of compactness, contiguousness and the honoring of
political subdivision boundaries are so important that the Supreme Court has said that these three
considerations justify some departure from a state’s having to establish perfectly equal
congressional districts. The Supreme Court stated that each of these principles is important to
apply in order to avoid the problems of partisan gerrymandering. Each of these principles is
important to establish fair voting districts that protect the individual’s fundamental voting rights.
Failure to employ and honor these principles undermines the entire process of using election
districts to elect Representatives.
Once the State of Maryland sets up a system to elect its Representatives by geographic
districts, then federal voting rights and Maryland State voting rights come into play with such
elections. Foremost under Maryland law is the Election Article of the Maryland Code. The stated
purpose of the election law governs the more particular parts. The Statement of purpose is found
in Section 1-201 of the Election Article, which states the following:
The intention of this article is that the conduct of elections should inspire public
confidence and trust by assuring that:
(1) all persons served by the election system are treated fairly and equitably;
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(2) all qualified persons may register and vote and that those who are not qualified
do not vote;
(3) those who administer elections are well-trained, that they serve both those who
vote and those who seek votes, and that they put the public interest ahead of
partisan interests;
(4) full information on elections is provided to the public, including disclosure of
campaign receipts and expenditures;
(5) citizen convenience is emphasized in all aspects of the election process;
(6) security and integrity are maintained in the casting of ballots, canvass of votes,
and reporting of election results;
(7) the prevention of fraud and corruption is diligently pursued; and
(8) any offenses that occur are prosecuted.
This section applies to the entire State election law, including the defining of congressional voting
districts in Sections 8-701 through 8-709. Fundamental principles in this election process are that
the setting up of congressional districts “should inspire public confidence and trust”; that “all
persons served by the election system are treated fairly and equitably”; that those who administer
elections, including defining election districts “put the public interest ahead of partisan interests”;
that “citizen convenience is emphasized in all aspects of the election process”; that “integrity [is]
maintained”; and that “prevention of . . . corruption is diligently pursued.” The establishment of
compact and contiguous districts giving due regard to natural and political subdivision boundaries
are policies that promote the state purposes of establishing an election process that inspires public
confidence and prevents infection with partisan interests. Conversely, disregard for compact and
contiguous districts and disregard for natural boundaries and the boundaries of political
subdivisions subverts the stated Maryland fundamental election purposes; disregard of these things
makes a mockery of the districting process—it does not treat voters fairly and equitably; it puts
partisan interests ahead of the public interest; it is inconvenient for voters; it compromises the
integrity of the voting process; and it infects the entire election process with corrupt partisan
elements.
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Sections 8-702 – 8-709 of the Election Article define in words the boundaries of each
congressional election district. But without looking at the maps of such defined areas it is difficult
to comprehend the convoluted shapes of many of the districts. On the other hand, merely a quick
glance at a map of the new election districts immediately shows how the shape of at least the six
districts that are the subject of this law suit (a) are not compact; (b) are barely, technically
contiguous; and (c) disregard the county boundaries in many instances. These characteristics are
flaws in the districting process, and these flaws violate the fundamental, federal voting rights of
members of these districts under the Fourteenth Amendment and under Article IV, Section 4.
The shape of Districts 2, 3 and 4 are so convoluted that they violate the very meaning of the word
“district.” District implies a geographic area that is relatively compact and contiguous. An
example of proper districting would be the outline of the 23 counties in Maryland and Baltimore
City. The “Congressional Districting Plan” is so infected with disjointed and disconnected areas,
frequently connected only by narrow threads of land that they are an affront to the word “district”
as well as an affront to the stated purpose of Maryland’s election law. The new districting plan is
a sham! The Governor and the Legislature might just as well as assigned district numbers to a list
of voters in the state without regard to any geographic areas; the plan is a total repudiation of
geographic election districts. But the Maryland election law requires election districts. And once
the state law requires election districts and bestows voting rights, the protection of fundamental,
Constitutional voting rights kick in. The new “Congressional Districting Plan” violates these
fundamental, Constitutional voting rights.
The right to vote, including the right to vote in congressional elections is clearly a
fundamental right. Bush v. Gore; Reynolds v. Sims. The question is whether Maryland’s new
“Congressional Districting Plan” violates that fundamental right by its disregard of the principles
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of compactness and honoring political subdivision boundaries in the new districts it creates. The
answer is in the affirmative: The new “Congressional Districting Plan” blatantly disregards the
principles of compactness and recognizing subdivision boundaries; on its face, the “Congressional
Districting Plan” violates the fundamental, federal Constitutional right to vote guaranteed by the
Fourteenth Amendment Due Process and Equal Protection Clauses and by Article IV, Section 4.
B. DISTRICTING REQUIREMENTS UNDER THE MARYLAND
CONSTITUTION AND MARYLAND STATE ELECTION LAWS
While the boundaries and configuration of new districts 1, 2, 3, 4, 6 and 8 are each
necessarily different, the arguments set forth herein apply to each of them. Each of these newly
configured districts is not compact, is barely contiguous, and is drawn with total disregard to the
boundaries of counties in them. A mere glance at the map showing the boundaries of these
districts shows this.
As an Introduction to its ruling in Matter of Legislative Districting, 370 Md. 312, 805 A.2d
292 (2002), this Court stated the following:
A fairly apportioned legislature lies at the very heart of representative democracy.
That is the message behind the Supreme Court’s landmark decisions in Baker v. Carr,
369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), Gray v. Sanders, 372 U.S. 368, 83
S.Ct. 801, 9 L.Ed.2d 821 (1963), and Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362,
12 L.Ed.2d 506 (1964). . . . Because it involves redrawing the lines of legislative districts,
the process of reapportionment is an intensely political process. But it is also a legal one,
for there are constitutional standards that govern both the process and the redistricting plan
that results from it.
805 A.2d 296.
Article III, Section 4 of the Maryland Constitution states: “Each legislative district shall
consist of adjoining territory, be compact in form, and of substantially equal population. Due
regard shall be given to natural boundaries and the boundaries of political subdivisions.” The
newly drawn congressional districts do not comply with the requirements that Article III, Section
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4 impose on state legislative districts. But the Governor and Legislature have taken the position
that they do not have to comply with those state requirements. For the reasons stated below, this
brash position not only conflicts with Maryland’s policy on districting, but it violates the
fundamental voting rights under the Maryland Constitution. The Governor and the Legislature
need a little help in connecting the dots in this matter, and the following explanation will attempt
to do this.
The organization of Section 4, within Article III, implies that Section 4 applies to the State
election districts, and therefore some argue that it has no applicability to the congressional
districts. This Court endorsed such a view in dicta in Matter of Legislative Districting, 370 Md.
312, 805 A.2d 292 (2002). But this Court’s conclusion in that case did not involve any party who
had reason to dispute that conclusion. For the reasons stated herein, that narrow reading of
Maryland State congressional districting requirements should be reexamined.
First, Section 4 articulates a state policy regarding the creation of proper election districts.
The language in Section 4 does not state that it does not apply to congressional district. The plain
language of Section 4 does not distinguish between districts for State legislators versus
congressional legislators. Rather it states that those principles apply to State districts, and the
congressional districts are State districts just as much as the districts for State Senators and State
Delegates. A fair interpretation of Section 4 is that the principles required to make a proper state
election district should also apply to congressional election districts. It is true that Article III deals
primarily with the State Senators and State Delegates, but nowhere does it state in Article III that
the scope of each section is limited or must be limited only to the election of State officers. And,
in any event, once a State districting policy is articulated, the State would be required to justify
any deviation from that policy in other election districting contexts, if the State is to contend that
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those principles and rights do not apply to congressional districting and voting. But the State has
not done this.
Second, the stated purpose of the State election laws and procedures is to “inspire public
confidence and trust,” to see that “all persons served by the election system are treated fairly and
equitably,” to “put the public interest ahead of partisan interests,” to promote “citizen
convenience,” and to ensure that “integrity [is] maintained.” Section 1-201 of the Election
Article, Maryland Code. The election districting requirements of Article III, Section 4 of the
Constitution are in harmony with the mandates of Section 1-201. But the configuration and
definition of the new “Congressional Districting Plan” violate the purposes of Maryland election
laws as stated in Section 1-201. Those purposes apply to all the State districting, including the
congressional districting in Sections 8-701 through 8-709. When the Legislature and the
Governor adopted a congressional districting plan that totally disregards the principle of
compactness and totally disregards the need to keep political subdivisions (i.e., counties) in the
same district as much as possible—this disregard is a violation of State election policies. The
Governor and Legislature have taken the position that unless they pass a law that specifically
requires them to honor principles of compactness and due regard for political subdivision
boundaries, then they do not have to follow them at all. But this position assumes that the
“compactness” and “due regard” principles can only apply to Maryland voting rights IF the
Legislature and Governor enact a law that requires them to apply these principles. But this is
where the Legislature and Governor have gone astray. The Supreme Court in Reynolds v. Sims
described both of these principles as being of such importance that they can justify a State from
varying from the fundamental voting right that mandates perfect equality of population in
congressional voting districts. Only a fundamental voting right could have the power to diminish
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and modify another fundamental voting right. Thus, once Maryland confers voting rights on its
citizens in the process of selecting Representatives, the principles of compactness and due regard
for political subdivision boundaries are triggered, whether or not a state law specifically provides
for these principles. But the applicability of these principles is also triggered in Maryland by
virtue of the fact that the Maryland law recognizes these principles in its state legislative districts.
Maryland law does not exclude the application of these principles to congressional districting, and
the fact that the State acknowledges the importance of these principles in state districting gives the
implication that they should also apply in congressional districting, unless there is some
competing valid principle that would be affected. But there is none. In other words, Article III,
Section 4 articulates a State policy that election districts should be compact and should give due
regard for the boundaries of political subdivision. Therefore, absent some statement and
justification that these principles should not apply to congressional districts, there exists a state
policy that these are important principles that protect the fundamental voting rights of Maryland
citizens, including voting rights in connection with congressional districting. If the Governor and
Legislature take the position that the principles and rights that it specifically guarantees for
electing state representatives do not apply to the election of congressional Representatives, then
Maryland must specifically state and justify why it affords lesser voting rights to its citizens in the
congressional elections. Failing to do so, the stated policy for voter rights in state elections would
also apply to voter rights in congressional elections.
And third, because congressional elections affect federal elections, Maryland voters have
fundamental, Constitutional voting rights that must be honored. Included in those rights is the
requirement that Maryland districts be as compact as possible, contiguous, and that political
subdivisions (e.g., counties) be kept together as much as and whenever possible. Reynolds v.
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Sims, 377 U.S. 533, 577-581 (1964). That these federal voting rights apply to state districting was
acknowledged by this Court in Matter of Legislative Districting, 370 Md. 312, 805 A.2d 292
(2002), where this Court stated that “[a]lthough [Article III, Section 4 is] exclusively a state
constitutional provision, the rationale underlying Article III’s component requirements is well
recognized and stated by the United States Supreme Court” 805 A.2d 318, citing Reynolds v.
Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). This Court interpreted Reynolds v.
Sims to hold “that the Equal Protection Clause requires state legislatures to make an ‘honest and
good faith effort’ to construct districts ‘as nearly of equal population as is practicable, . . . and that
“maintaining the integrity of political subdivisions and providing compact and contiguous districts
. . . . are legitimate considerations. . . . Indiscriminate districting, without any regard for political
subdivision or natural or historical boundary lines, may be little more than an open invitation to
partisan gerrymandering.” Id. This Court went on to state “that the state constitutional
requirements of Section 4 work in combination with one another to ensure the fairness of
legislative representations.” Id. At 320-321.
The political boundaries that were successfully challenged in Matter of Legislative
Districting were all boundaries for state legislative districts. But this Court’s reasoning in support
of its holding that invalidated some of the boundaries in that plan—that reasoning applies equally
to congressional boundaries because they are constitutional standards. This Court went on to
state:
But neither discretion nor political considerations and judgments may be utilized in
violation of constitutional standards. In other words, if in the exercise of discretion,
political considerations and judgments result in a plan in which districts: are noncontiguous; are not compact; . . . or with district lines that unnecessarily cross natural or
political subdivisions boundaries, that plan cannot be sustained. That a plan may have
been the result of discretion, exercised by the one entrusted with the responsibility of
generating the plan, will not save it. The constitution “trumps” political considerations.
Politics or non-constitutional considerations never “trump” constitutional requirements.
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Id. At 326.
The result of this analysis shows that neither the Governor nor the Legislature can
disregard the requirements of “compactness,” “continguousness” and “regard for political
subdivision boundaries” in the congressional districts that it draws. But, in fact, the Governor and
Legislature did just that. The congressional districts that it concocted for Districts 1, 2, 3, 4, 6 and
8 totally disregard “compactness,” and totally disregard the county (political subdivision)
boundaries within those new districts. It is interesting to note that Districts 2, 3, 4 and 8 are barely
contiguous; and the map demonstrates an attempt to barely string areas together. But the resulting
contiguousness is a blatant disregard of the requirements to be compact or to honor political
subdivision boundaries.
The boundaries of Districts 2, 3, 4 and 8 in particular, are so convoluted that there is no
reasonable or sensible area defined to be served by whatever representative would be elected for
those areas. The whole concept of having a geographic district is discarded and repudiated by the
proposed boundaries in Districts 2, 3, 4 and 8. The Legislature might just as well have dispensed
with geographic districts; they might as well have just assigned district numbers to voter rolls and
not pretend to have geographic districts. In essence, that is what the recently passed
“Congressional Districting Plan” does. It undermines the principle of representative government
in geographic areas, and it violates the guarantee of a representative government.
V. CONCLUSION
Under federal and State law, congressional election districts must be compact, must be
contiguous and must be drawn with due regard to natural boundaries and political subdivision
boundaries. The Governor and the State Legislators who drew the boundaries for the newly
constructed eight congressional districts in Maryland (in the “Congressional Districting Plan”)
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failed to comply with the requirement of compactness and failed to give due regard to political
subdivision boundaries. The implicit message from the Legislators and the Governor is that the
congressional districts that they draw can be as convoluted and “un-compact” as they like, as long
as their motives are not racially motivated, and that similarly, they do not have to give any regard
to the boundaries of political subdivisions as long as they are not racially motivated. The implicit
message of the Legislators and the Governor is that however unreasonable and convoluted any of
the new districts may be, it does not matter; there’s nothing anyone can do about it. The implicit
message of the “Congressional Districting Plan” is that no federal or state law imposes any
restriction on them in drawing congressional boundaries.
Plaintiffs contend that the Governor and Legislature are mistaken in this position. Article
IV, Section 4 of the United States Constitution and the Due Process and Equal Protection Clauses
of the Fourteenth Amendment impose limitations on the shape of congressional districts, and
where the shaping of a district becomes so convoluted as to impair effective and orderly
representative government in the states, that such boundaries can be voided, and that the courts
can order them to be redrawn. Additionally, the specific State policy with respect to state election
district boundaries (Article III, Section 4) applies equally to congressional district boundaries.
WHEREFORE, for the reasons stated, Plaintiffs are entitled to a Summary Judgment in
their favor, including the granting of a Declaratory Judgment that the new “Congressional
Districting Plan” violates the Maryland Election laws and the Maryland Constitution and the
United States Constitution, and that the “Congressional Districting Plan” should be struck down
and invalidated, and the prior districting plan reinstated until such time as the Governor and the
State Legislature shall draw a new plan, the boundaries of which are compact, contiguous and give
due regard to the natural boundaries and to the boundaries of political subdivisions.
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_______________________________________
C. Paul Smith
Attorney for Plaintiffs
308 West Patrick Street
Frederick, Maryland 21701
(301) 762-0033
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IN THE MARYLAND COURT OF APPEALS
C. JAMES OLSON, et al.,
Plaintiffs
*
*
vs.
*
MARTIN O’MALLEY,
*
Case No. _________
Defendant
*
____________________________________
SUMMARY JUDGMENT
Upon consideration of Plaintiffs’ Motion for Summary Judgment and any opposition
thereto, it is thereupon, on this the ______ day of _________________________, 2011, by the
Court of Appeals of Maryland,
ORDERED, that the aforesaid Motion for Summary Judgment is granted; and it is further
ORDERED, that a declaratory judgment is hereby issued declaring the “Congressional
Districting Plan” (SB 1), that was enacted by the State Legislature and signed by the Governor on
October 20, 2011, violates the Maryland Election laws and the Maryland State Constitution and
the United States Constitution, and it is therefore null and void; and it is further
ORDERED, that an Injunction is hereby ordered to prevent the State of Maryland from
using the aforesaid “Congressional Districting Plan” in any primary or general election; and it is
further
ORDERED, that the State’s previous congressional districting plan is hereby reinstated
until such time as a new and constitutionally valid, new districting plan is enacted.
_____________________________________
Court of Appeals of Maryland